• If damages are to be claimed in delict, the loss or injury must have been caused by culpa or
fault whether that be intentional or negligent.
• Normally the law only imposes a duty on the actual wrong doer who is consequently held
responsible for his actions
• It is no defence to claim you were only obeying the instructions of another in committing a
wrongful act.
• Under Scots Law the general principle of liability is:
culpa tenet suos auctores – he who does the wrong is liable for it.
• There are some important exceptions to this general rule that a person is liable only for his
own delicts and not for those of another person
STRICT LIABILITY
• This is a form of liability which arises in the absence of fault.
• In particular there are now many forms of statutory liability where the state provides that
liability arises for acts or omissions even where there is no culpa.
• Some statutory provisions impose an absolute duty, with the result that a person who is
breach of duty incurs liability regardless of how great his efforts to fulfil the duty have been.
The main forms of strict liability are:
• Statutory liability
• Edictal liability
• Liability for animals
• Liability for alteration to watercourses
• Liability for unintentional slander
• Vicarious liability
VICARIOUS LIABILITY
An adjective to do something through someone else. The liability arises where someone else has done
something and you have to step in and take responsibility.
• Vicarious liability is a very important and major exception to the rule of fault-based liability.
• Vicarious liability occurs where a superior is legally required to take responsibility for a delict
committed by his/her subordinate.
, • For vicarious ability to apply, there must be a contractual relationship of employment
between the superior and the subordinate or a relationship that is akin to a contractual
relationship of employment. Lister v Hesley Hall.
• This pre-existing contractual relationship is sufficient to impose liability on a person not at
fault, for the commission of a delict by another person.
Vicarious Liability arises in situations of:
• Agency
• Partnership
• Employment
JUSTIFICATION
• There are two legal maxims used to justify the imposition of vicarious liability:
• respondeat superior – “let the master be answerable”. Let your line manager take
responsibility for what you have done, it is because someone above you has not made sure
you do what you are supposed to do.
The employer is liable because the employer has required the employee to carry out the act
but has failed to ensure that the act is carried out by the employee lawfully and carefully.
• qui facit per alium facit per se – “he who does something through another person has done
that thing himself”.
Thus, in employment situations, an employer will be vicariously liable for the consequences
of an employees delictual act, provided that the wrong is committed within the scope of the
employment contract.
• The effect is to and transfer liability for the actions of the wrongdoer to the person getting the
benefit or gaining in some way from the actions of the wrong doer.
• It has the practical consequence of enabling an injured party to sue the person behind the
actual wrong doer who is more likely to have the financial means to pay adequate damages
or to be covered by insurance.
WHO TO SUE?
• The injured party is also entitled to sue the wrongdoer, but in most cases will achieve a better
result by establishing vicarious liability.
• An employee owes a duty to the employer
• A principal or employer found to be vicariously liable may also sue to the actual wrongdoer to
recover the amount he has paid in damages although in practice this rarely happens.
• The employer does have the option once they have been sued, to take back any damages from
the wrong doer by raising an action for negligence. It is not useful because they do not have a
lot of money.
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